ECHR ruling dated December 4, 2018 in the case of the Magyar Jeti Zrt Company (Magyar Jeti Zrt) v. Hungary (application No. 11257/16).
In 2016, the applicant company was assisted in the preparation of the application. Subsequently, the application was communicated to Hungary.
The case was successfully considered an application of the online news portal about being recognized as responsible for distributing derogatory statements violating the political party’s right to reputation by posting a hyperlink to the content. The case has violated the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicant company managed a popular online news portal in Hungary. After the incident, when football fans, being intoxicated, shouting racist statements, threatened the students of the school, where mostly Romanians studied, the head of the local government of the Romanian minority gave an interview to the media, in which he paid particular attention to the problems of the Romanians. Describing the events, the head of local government said that football fans may have been members of the ultra-right nationalist political party "Jobbik." The media posted a video from the interview on the Youtube channel. The applicant company published an article about the incident on its website, and also posted a hyperlink to the video from the YouTube channel.
The ultra-right nationalist political party "Jobbik" has filed a lawsuit to protect the honor, dignity and business reputation. This party claimed that by using the term "Jobbik" to describe football fans and publishing a hyperlink to a video from the Youtube channel, the defendant jeopardized the reputation of the party. The applicant company was found responsible for spreading defamatory statements that violated a political party’s right to a reputation. Her objections were dismissed.
QUESTIONS OF RIGHT
Regarding compliance with Article 10 of the Convention. The decisions of the Hungarian courts indicated that the interference with the applicant’s rights to freedom of expression was carried out with a legitimate aim, namely to protect the rights of others. At the same time, there was no need to decide whether the relevant provisions of Hungarian law were predictable in the light of the conclusion of the European Court on the need for intervention.
The case of the applicant company concerned the “duties and responsibilities” of a news Internet portal for the purposes of Article 10 of the Convention in a specific situation, when the information posted online contained a hyperlink leading to content available on the Internet that was later defamatory. Taking into account the modern role of the Internet in expanding public access to news and information, the very purpose of hyperlinks is to redirect Internet users to other pages and Internet resources, to allow them to move to materials characterized by the presence of a large amount of information. Hyperlinks contribute to the smooth operation of the Internet, making any information available through links between various articles. Hyperlinks as a message method differ significantly from traditional publishing in that, as a rule, they simply direct users to content available on other Internet sites. They do not provide the audience with confirmation of the information referenced, and do not convey its content, but only attract the attention of readers to materials posted on another site. Another distinctive feature of hyperlinks in comparison with other methods of disseminating information is that the person referencing information through a hyperlink does not exercise control over the content of the site to which access is provided by hyperlink and which can be changed at any time after the link is created, Naturally, except for the situation when the hyperlink is placed on a site belonging to the same person. In addition, it was noted that the content to which the hyperlink was made was already available due to the publication by the original publisher, which provided unrestricted access to the public.
The question of whether the placement of a hyperlink legitimate under the terms of Article 10 of the Convention entails responsibility requires a separate assessment in each case, taking into account the different circumstances of the cases. In particular, the following factors are important for assessing the responsibility of the applicant company for the publication of this hyperlink:
(i) did the journalist approve of the disputed content (content)?
(ii) Did the journalist repeat the contested content (without his approval)?
(iii) Has the journalist placed a hyperlink directly to the content (without endorsing or repeating it)?
(iv) Did the journalist know or should have known that the contested content was defamatory or otherwise illegal?
(v) Has the journalist acted in good faith, has he complied with journalistic ethics, and has he exercised the due diligence necessary in responsible journalism?
In the article under consideration it was mentioned that the interview conducted with the head of local self-government could be found on the Youtube channel, and this made it possible to access it via a hyperlink without any comments or repetition, even partially, of the interview itself. No political party was mentioned. The author did not mention in the article that the statements available through the hyperlink are truthful and reliable, and also that he approves the specified material accessible through the hyperlink or accepts responsibility for its placement. In addition, the hyperlink was not used in a context that was in itself defamatory. Thus, it can be concluded that the contested article did not mean approval of the disputed content.
Regarding the issue of repetition (distribution) of content, the punishment of a journalist for facilitating the dissemination of allegations made by others during the interview would seriously limit the press’s contribution to the discussion of issues of public interest, and such punishment should not be provided for there will be no particularly compelling reasons.
It cannot be ruled out that in some specific combinations, even a simple repetition of a statement, for example, in addition to a hyperlink, can potentially raise the issue of responsibility. This applies to situations where a journalist acts in bad faith, with a clear violation of journalistic ethics on matters of public interest.
However, this is not relevant to the case of the applicant company, since its article did not repeat a single damning statement, and the publication was really limited to placing a hyperlink.
As to whether the journalist and the applicant company knew or should have known that the hyperlink provided access to defamatory or questionable content, this question should have been considered in real time, rather than taking into account the findings in the past tense indicated in decisions of the courts of Hungary.
In this case, the journalist should have assumed that the content to which he granted access, although it may be contradictory, will remain within the framework of permissible criticism of political parties and as such will not be illegal. Although the statements by the politician were ultimately defamatory, as they implied, without actually justifying, that the people associated with “Jobbik” committed racist acts, the European Court of Justice noted that such statements could not be regarded as clearly illegal.
In addition, the relevant Hungarian law, clarified by the competent courts of the respondent State, excluded any meaningful assessment of the rights to freedom of expression of the company's opinion in accordance with Article 10 of the Convention in a situation where these restrictions would require careful study, taking into account the discussions on of general interest. Indeed, the Hungarian courts indicated that the hyperlink was limited to the dissemination of information and the distribution of objective responsibility, actions that effectively excluded any balance between competing rights, that is, the right to reputation of a political party and the right to freedom of expression of the applicant company. Such objective liability can have predictable negative consequences for the flow of information on the Internet, prompting authors and content creators to generally refrain from hyperlinks to materials whose content they do not control. This can directly or indirectly affect freedom of expression on the Internet.
The Hungarian courts’s recognition of the applicant’s objective liability was not based on permissible and sufficient grounds. Thus, this measure constituted a disproportionate restriction on the applicant’s right to freedom of expression.
The case was a violation of Article 10 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded the applicant company EUR 597.04 in respect of non-pecuniary damage. She did not submit claims for pecuniary damage.